The first tribunal decision on shared parental pay has been heard. It was a Scottish employment tribunal decision, hence it is not binding on English tribunals, but it provides a useful guide as to how tribunals are likely to approach compensation in such claims.

Network Rail issued a policy on shared parental leave stating that mothers were entitled to enhanced shared parental pay, while fathers were entitled only to the statutory rate of pay. A father felt this was unfair and after exhausting the internal grievance process, pursued his frustration to the tribunal claiming direct and indirect sex discrimination. Network Rail initially tried to justify its policy on the basis of objective justification, with the aim of recruiting and retaining women in a male dominated workforce. However, by the time of the tribunal hearing, Network Rail no longer contested the indirect sex discrimination claim, on the understanding that the father was withdrawing the direct discrimination claim. Network Rail had also changed its policy to apply statutory pay to all employees who take shared parental pay.

The parties agreed that the employment tribunal should make a declaration that the father was indirectly discriminated against in relation to his sex by applying the shared parental leave policy. This meant that the tribunals’ main focus was on compensation, awarding just over £16,000 in future loss of earnings (being the difference between the statutory parental pay and what the father would have received had he been entitled to the enhanced level of pay). In addition, the tribunal assessed the fathers’ injury to feelings and awarded him £6,000, applied an uplift of approximately 12% for Network Rail’s failure to follow the ACAS code of practice during the grievance process and just over £2,000 in pension loss and interest.

The issue of whether employers can enhance maternity pay but not shared parental pay (and any objective justification defence as a result) remains untested in the English tribunal. However, employers should continue to review their shared parental leave policy and look to avoid any discrimination when deciding on enhanced payments.

Snell v Network Rail Infrastructure Limited